Sevenex Pty Limited v Blue Mountains City Council

(2011) 183 LGERA 1; [2011] NSWCA 223

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development consent
3. › Existing use rights
4. › Construction of development consent
5. › Whether consent for 'establishment of a commercial development' authorised proposed mixed media exhibition
6. › Whether purpose specified in development application or consent
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 81A(1), 91(4), 106, 108
1. Environment and Planning
2. › Development consent
3. › Existing use rights
4. › Change of existing use to another commercial use
5. › Whether proposed use constituted 'retail premises' or 'business premises'
6. › Whether sale of tickets constitutes retail business
7. › Whether entertainment exhibition constitutes provision of 'services'
8. › Environmental Planning and Assessment Regulation 2000 (NSW), cl 41(1)(e), (3)
9. › Standard Instrument (Local Environmental Plans) Order 2006
1. Statutory Interpretation
2. › Words and phrases
3. › 'Purpose'
4. › Purpose of development consent
5. › Level of generality at which purpose is characterised
6. › Environmental Planning and Assessment Act 1979 (NSW), s 91(4)
1. Statutory Interpretation
2. › Words and phrases
3. › 'Business premises'
4. › 'Service'
5. › 'Retail premises'
6. › Whether sale of admission tickets constitutes retail sale of items
7. › Whether entertainment exhibition constitutes provision of services
8. › Standard Instrument (Local Environmental Plans) Order 2006

Quick Take

A development consent for 'establishment of a commercial development' must be construed by reference to the approved plans, not as authorising any unspecified commercial use. The sale of admission tickets to an entertainment exhibition does not constitute 'retail premises' under the Standard Instrument, and providing an entertainment experience does not constitute the provision of 'services' within the meaning of 'business premises'. A party relying on s 81A(1) (formerly s 91(4)) of the EP&A Act to establish the purpose of a development consent bears the onus of tendering the development application in evidence.